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Use of famous song title in my business ad?

Discussion in 'Copyright, Trademark, Patent Law' started by ellendonna, Sep 13, 2009.

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  1. ellendonna

    ellendonna Law Topic Starter New Member

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    My jurisdiction is: Oregon

    Am I allowed to use a famous song title with quotation marks around it, in a local newspaper business ad? It would be a very catchy "hook" for my service business. The legal name of my business has nothing to do with the song title, by the way.
     
  2. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    If the song title isn't trademarked for an item, there shouldn't be a problem. I don't know the title so I can't tell you. For example, I can have a clothing ad with a picture of a woman that says "I Saw Her Standing There" and the Beatles would not be able to sue me...
     
  3. ellendonna

    ellendonna Law Topic Starter New Member

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    The title of the song happens to be, "We Can Work it Out", by the Beatles. I do not believe there is a trademarked item for this.
    Thanks for the advice and best to you.
     
  4. lulu10

    lulu10 New Member

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    Naming products with song titles

    I make and sell jewelry. I would like to name my necklaces using song titles. Do I need to search trademarks for each song before I do that and only use those not registered? May I include printed lyrics with each piece?

    Thanks!
     
  5. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    In special instances where the song was a huge hit, it could be trademarked. This is an issue of "likelihood of confusion." Part of the problem is that if the song has a very unique title and identified with a song or album, the goal of the second comer is to trade off the popularity and identification of that phrase with a famous person. That's a classic case of likelihood to cause confusion as to the origin of the item. For example, my understanding is that the song title "Cheeseburger in Paradise" is a trademarked by Jimmy Buffet.

    I know of some people selling t-shirts with song titles and haven't had a problem, which doesn't mean that person won't have one in the future. From a legal standpoint, yes, you do and should search the register for each song you want to use.
     
  6. cyjeff

    cyjeff New Member

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    Part of the difficulty is that some artists are much more protective of their work than others.
     
  7. lulu10

    lulu10 New Member

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    I neglected to add that each necklace is one-of-a-kind and cannot be reproduced. I would use a different song title (mostly from 70's and earlier) for each piece. Does that make any difference or does it just lessen the odds of repercussion?
    Thank you for your time and advice!
     
  8. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Generic song titles would be very difficult to trademark as "famous marks" IMHO and, if so, might not apply to a different class such as jewelry manufacture where you might be able to apply for a mark for the slogan which is in connection with your jewelry.
     
  9. oharelaw

    oharelaw New Member

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    Trademark and Copyright

    Naming the jewelery after songs and supplying lyrics with the jewelery present issues with both trademark and copyright. Coypyright protects an author from having someone copy his/her original work. Since 1978 copyright in an original work is basically automatic... the author does not have to "copyright" the work to have copyright protection. Copying song lyrics from 1970's songs will indoubtedly be a copyright infringement and the copier may be subject to liability unless he/she can show his/her use is a "fair use" as defined in the copyright act (the commercial use to promote the jewelery is not a "fair use". )

    Titles of Songs are usually not afforded copyright protection because they are usually short and do not have sufficient originality. Nevetheless, a long title may be found to have sufficient originality to be afforded copyright protection.

    The second issue is one of trademark. A trademark is a word or phrase which identifies the origin of a product or service. That is to say it tells the consumer who is offering the product or service. The trademark protects the public from someone trying to pass off a product or service as originating from the owner of the mark. Thus, if I were to sell motor oil using the term "Exxon", I would infringe the Exxon trademark because it is likely that consumers would be confused that my oil was coming from the big oil company.

    Since it is not likely that consumers will believe that the jewelery is originating from, or is associated in any way with the owner of the song copyrights, the use of the titles is not likely to be a trademark infringement.
     
  10. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Supplying lyrics is essentially the kiss of death.

    True -- but I'd worry about the "Beatles Jewelry Line" if you name all your jewelry after famous Beatles songs which may result in a potential appearance of an association with the Beatles. Right or wrong, legal or illegal, you'll certainly attract a lawsuit and it will then be up to you to finance who is right and who is out a great deal of money.

    I have a friend who does something similar with t-shirts. She is incredibly creative and I love her work. There is no connection with any specific artist, just very short common phrases people have used that have been a part of a song.

    http://www.daisyhead-designs.com/
     

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